Take to the stand

With the rise in tribunal hearings, OH expertise is increasingly being called
into the legal arena. But what lessons can the profession learn from recent
documented cases?By Linda Goldman and
Joan Lewis

Employment tribunals and civil courts are awarding very high levels of
compensation in cases involving personal injury suffered in the workplace. The
injury may be psychological, physical or a combination of both.

Occupational health staff are involved in assessing capability for work at
all stages of the employment process, taking into account any changing
circumstances. Changes in conditions may be personal – for example, illness or
pregnancy – or they may relate to changes in the job itself. Many cases of
long-term absence from work require occupational health input to determine
fitness for return to work or suitability for early retirement on health
grounds.

The Disability Discrimination Act 1995 affects the treatment of employees
whose health causes absence from work, since employers are required to make
reasonable adjustments to allow a disabled person to remain in the workplace.

This wide range of matters involving occupational health brings them
increasingly into the courts and tribunals where their opinions on the health
of an employee are critical.

Expert approach

An expert witness is one who is independent of either party involved in
litigation. The duty of the expert is to the court and their opinion is in
relation to the specific area of their expertise called upon in evidence which
must not appear to usurp that of the judge.

An occupational professional must therefore have very clear and objective
standards when reporting in-house on the health of an employee, lest an
inference be drawn that the professional opinion is partisan.

An expert report should not only contain the credentials and expertise of
the witness but also a sentence to the effect that the witness understands that
their duty is to the court. Those who instruct the witness to prepare a report
should not put any constraint on how the report is written – a "warts and
all" professional and objective approach is the only one which the expert
can and should offer. Even if the occupational health professional is not
involved in the litigation process, impartiality is the order of the day in the
preparation of any report.

The question of fitness to work is one frequently considered by the courts.
In Gogay v Herts County Council, the Court of Appeal considered the effect on
an employee’s health of suspension during employment in a case in which medical
opinion was pivotal.

More recently, occupational health opinion came under scrutiny in Farnsworth
v London Borough of Hammersmith and Fulham because the council chose to rely
only on its doctor’s report of a disabled job applicant’s health records as to
fitness to work, when the records themselves showed that she was likely to have
a good attendance at work.

In that case, the Employment Appeal Tribunal held that the applicant’s
consent to release her health records was to the council and that the doctor
was not bound by confidentiality. Therefore, the doctor could have given more
information to the council on which they could base their decision as to
whether to employ the applicant.

This case appears to question the necessity for confidentiality in
considering health records. More clearly, the case underlines the view of
tribunals that employment decisions are the responsibility of management and
cannot be delegated to medical experts. Fair and objective decisions are
required of employers based on various factors including medical opinion, where
appropriate.

Medical evidence was questioned in Abadeh v British Telecommunications,
2001, IRLR 23. The EAT held that the tribunal was "over influenced"
by BT’s regional medical officer’s opinion so that it adopted her assessment
that Abadeh’s impairment of tinnitus did not have a substantial effect on his
day-to-day activities. The doctor was entitled to her opinion on the diagnosis
of the condition and to report on observations of his condition but thereafter
it was a judicial function to determine whether Abadeh was disabled within the
meaning of the Disability Discrimination Act.

Duty of care

Before making health a criteria for employment, employers might consider the
absence levels they tolerate in the existing workforce before making employment
offers dependent on a satisfactory health assessment. Where such an assessment
is deemed necessary, the candidate should be informed as to how the medical
assessment will take place – by questionnaire, for example, or medical or a
combination of the two.

In light of the Farnsworth case, the applicant will need to give written
consent to the medical being carried out and to whom the content of the report
and material on which it is based may be disclosed.

Apart from rights under the Data Protection Act 1998, if the candidate is
dissatisfied with a report or recommendation, they may consider litigation
directly against the occupational health professional who prepared it. It may
be of some comfort, considering the difficulties that doctors have been having
in the cases quoted, that recent case law indicates that the occupational
physician carrying out a medical examination or tests is doing so for the
benefit of the prospective employer and therefore no duty of care is owed to
the subject of the medical.

In Kapfunde v Abbey National and Daniel it was confirmed that for a duty of
care to arise there has to be a doctor-patient relationship. It is best,
therefore, to stick to the professional remit of occupational health and
prepare all reports as an expert witness in case that is what occupational
health professionals are required to be.

A quick glance at what is going on in important employment cases can be
obtained from the EAT’s website (www.employmentappeals.gov.uk). A diligent
search will show where medical evidence has been a feature

Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for ACT Associates & Virtual Personnel. Joan
Lewis is a senior consultant and director of Advisory, Consulting &
Training Associates and Virtual Personnel, employment law and advisory service
consultancies

Case roundup

Kapfunde v Abbey National and
Daniel, 1998, IRLR, 583 CA

The employment medical does not create a patient-doctor
relationship. The doctor should, in effect, be a stranger to the job candidate.
In this case the doctor assessed a questionnaire which showed that the
candidate suffered from a chronic debilitating disease. The doctor reported
that this would result in poor attendance at work during acute exacerbations of
the disease. There could be a change in the non-therapeutic relationship if the
doctor spots a life-threatening condition and either reports it to the examinee
(creating the relationship) or fails to report it when ethical considerations
might arise. Arguably, the problem could be addressed by writing a confidential
letter to the examinee’s GP.

Lesson Contact professional indemnity insurers to agree
a form of wording.

The council took steps to suspend a social worker, who was
working under a lot of pressure, to investigate possible impropriety. The
social worker was exonerated but complained that the suspension amounted to a
breach of her contract and was so stressful as to cause her psychiatric injury.
She was successful in her claim for compensation, in which medical evidence was
called to show the effect of the suspension on her.

Lesson Include risk assessments on suspension criteria
in high-stress cases.

Farnsworth v London Borough of
Hammersmith and Fulham, 2000, IRLR 691

F consented to the disclosure of her medical records to the
council. The occupational physician assessed her as unsuitable for the job for
which she had applied on the basis of her past medical records. In fact, her
medical condition had improved in recent years and she had not taken time off
from the voluntary post which she had held for some time prior to applying to
the council. The EAT ruled that the employer’s knowledge of the employee’s disability
was irrelevant to whether it treated the employee less favourably for a reason
related to her disability. Knowledge or lack of knowledge of an applicant’s
disability is not a necessary ingredient for the purposes of the test of
justification. The employer’s habit of not making further enquiries of its
occupational health physician as to the medical history of a candidate were not
justified by misplaced reliance on a duty of confidence when the candidate had
waived the right to confidentiality.

Lesson Be cautious of making job offers before
completion of medical assessments.

F v London Borough of Camden,
2001, IRLR 186

The tribunal found that the employer did not discriminate
against F when they dismissed her as being incapable on the grounds of her disability
to carry out any job for them. The EAT said that was the wrong approach. The
tribunal failed to consider the extent to which, if at all, certain adjustments
proposed by F could have overcome the symptoms which were preventing her from
attending work. The case was sent back to another tribunal to consider whether
there were reasonable adjustments which could be made under section 6 of the
Disability Discrimination Act 1995. F had had a series of accidents and
illness. The council took advice from a doctor who could not give a realistic
date for her return to work. The medical report only covered one aspect of
change to her job by saying that, "even if the requirement to do home
visits was removed from her job description" he would be unable to give an
opinion on a date for her return to work. The EAT asked "why F was
incapable of carrying out any job at the council for medical reasons?" The
EAT said that the answer could have been that, in consulting with its
occupational nurse, it did not discuss the extent to which any adjustments
could help to get F back to work apart from the one item of home visits.

Lesson Consider the traditional elements of diagnosis
and prognosis in the context of reasonable adjustment recommendations or
comments.